Citation Nr: 0639896
Decision Date: 12/27/06 Archive Date: 01/05/07
DOCKET NO. 05-03 305 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, the Republic of the Philippines
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
ATTORNEY FOR THE BOARD
T. Mainelli, Counsel
INTRODUCTION
The veteran had recognized active service from December 1941
to December 1942 and from August 1945 to March 1946. He was
a prisoner of war (POW) of the Japanese from May 10, 1942, to
December 28, 1942. The appellant is the veteran's daughter,
and seeks a burial benefits for the veteran at the service
connected cause of death rate. The case is before the Board
of Veterans' Appeals (Board) on appeal from a June 2004
rating decision by the Manila RO.
FINDINGS OF FACT
1. The veteran died in September 2003; the certified cause
of his death was respiratory failure due to bronchopneumonia.
2. At the time of the veteran's death, his sole service
connected disability was duodenal bulb deformity from
previous ulcer disease and irritable bowel syndrome rated 10
percent disabling.
3. Bronchopneumonia was not manifested in service, and is
not shown to have been related to the veteran's service, to
include his experiences as a POW.
4. The veteran's service-connected disability, duodenal bulb
deformity and irritable bowel syndrome, is not shown to have
contributed to cause his death.
CONCLUSION OF LAW
Service connection for the cause of the veteran's death is
not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1310
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309,
3.312 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duties to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). The VCAA applies to the instant
claim.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi,16 Vet. App. 183
(2002). Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in his or her
possession that pertains to the claim. 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet.
App. 103 (2005).
The appellant was informed of the VCAA and its mandates in a
March 2004 letter. She was notified of what evidence was
needed to substantiate the claim, and of her and VA's
responsibilities in claims development. She was specifically
advised that it was her responsibility to ensure that all
records not in possession of a federal agency were received,
and to have the physician who certified the cause of the
veteran's death provide the basis for his conclusions. She
was provided a VA Form 21-4142, Authorization and Consent to
Release Information, if she desired the RO to obtain non-
federal records on her behalf, and was advised to identify
any VA or private medical facility where the veteran had
received treatment. Finally, she was notified to advise the
RO if there was any other evidence or information that she
thought would support her claim. A November 2004 Statement
of the Case (SOC) cited in full the provisions of 38 C.F.R.
§ 3.159(b). A May 2006 Supplemental SOC (SSOC) readjudicated
the matter. The appellant has received all essential notice,
and she is not prejudiced by any technical notice deficiency
along the way. See Conway v. Principi, 353 F.3d 1369 (Fed.
Cir. 2004).
Regarding the duty to assist, the RO obtained the veteran's
service medical records. The appellant submitted the
veteran's death certificate; she has not identified any
treatment records in the possession of a federal agency. and
has not authorized VA to obtain any private medical records
on her behalf. Absent any competent (medical) evidence
suggesting that the cause of the veteran's death may be
related to his service or to his service connected
disability, a medical nexus opinion is not warranted. Wells
v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). VA's
duty to assist the appellant in the development of her claim
is satisfied.
II. Factual Background
The veteran died in September 2003 at age 86. The certified
cause of his death was respiratory failure due to
bronchopneumonia. No other significant conditions
contributing to the cause of death were identified.
The veteran's service medical records include physical
examinations in October and November 1945 showing normal
lungs.
A September 1953 certification by the Department of the Army,
Office of the Adjutant General stated that records of War
Prisoners at O'Donnell Concentration Camp, Capas, Tarlac,
showed the veteran's physical condition as "WELL."
In May 1983, the veteran claimed sickness of malaria,
beriberi and dysentery while detained as a POW as a result of
forced labor, inhumane treatment, and lack of food and
medicine. He claimed chronic residuals of general body
weakness, nutritional anemia, malnutrition and malaria as a
consequence of dietary deficiency.
A July 1982 private medical statement provided diagnoses of
nutritional anemia secondary (2º) to malnutrition, and
probable tertiary-type malaria.
A November 1984 VA examination first found a pulmonary
infiltration in the left upper lung (LUL) field of unknown
(?) etiology. At that time, the veteran had reported a
history of tuberculosis acquired during captivity.
Additional diagnoses included simple myopia, insipient
cataract, exaggerated visual impairment, hypertrophic changes
of the lumbar spine, and arteriosclerotic changes of the
thoracic aorta. There was no evidence of avitaminosis,
malnutrition, dysentery, malaria or helminthiasis.
A December 1984 rating decision denied service connection for
dysentery, beriberi, malnutrition, malaria, cataract with
simple myopia, pulmonary infiltration and hypertrophic
condition of the lumbar spine. The veteran was notified of
this decision by letter in January 1985.
A February 1985 private medical record provided diagnoses of
chronic arthritis of the lumbosacral vertebral joints and
peptic ulcer.
In February 1989, the veteran requested service connection
for peripheral neuropathy, irritable bowel syndrome and
peptic ulcer disease.
VA examination in April 1989 found no evidence of peptic
ulcer disease or neurologic deficit.
A June 1989 rating decision denied service connection for
peripheral neuropathy, peptic ulcer, irritable bowel syndrome
and arthritis. The veteran was notified of this decision by
letter in July 1989.
A summary of private medical treatment from June to August
1990 shows diagnoses of irritable bowel syndrome, peptic
ulcer disease and osteoarthritis.
An October 1990 rating decision denied service connection for
irritable bowel syndrome, peptic ulcer and arthritis. The
veteran was notified of this decision by letter in October
1991.
A summary of private medical treatment in October 1990 shows
diagnoses of peripheral neuropathy and pulmonary tuberculosis
(PTB). The veteran had a one-year history of chronic
coughing with afternoon fever, and recent history of blood-
stained sputum. He was also diagnosed with peripheral
neuropathy.
A December 1990 rating decision denied service connection for
irritable bowel syndrome, osteoarthritis, peptic ulcer
disease, pulmonary infiltration and peripheral neuropathy.
The veteran was notified of this decision by letter in
January 1991.
Summaries of private medical treatment from December 1990 to
May 1991 show diagnoses of congestive heart failure, severe
anemia, peptic ulcer disease, irritable bowel syndrome,
peripheral neuropathy and severe osteoarthritis.
A July 1991 rating decision denied service connection for
irritable bowel syndrome, osteoarthritis, peptic ulcer, PTB,
peripheral neuropathy, beriberi heart disease, congestive
heart failure and anemia. The veteran was notified of this
decision by letter in August 1991.
A summary of private treatment from October to November 1991
shows diagnoses of advanced PTB, chronic bronchitis with
emphysema, chronic peptic ulcer disease, irritable bowel
syndrome, chronic osteoarthritis and peripheral neuropathy.
A chest X-ray examination showed PTB, minimal with healing
process; pulmonary emphysema; and atheromatous aorta. The
veteran had been bedridden due to chronic cough, weight loss,
anemia and episodes of hemoptysis. He also reported
persistent epigastric pain with episodes of loose bowel
movements.
VA examination in March 1992 included the veteran's report of
suffering from coughing during his POW captivity with a
history of breathing difficulty greater than (>) six years.
He also reported a history of vague abdominal pains unrelated
to food intake with irregular bowel movements. A chest X-ray
demonstrated pulmonary infiltrations, LUL, that had been
progressive from November 1984 to February 1992. There was
also pulmonary emphysema. An upper gastrointestinal (GI)
series X-ray showed duodenal bulb deformity with no evidence
of active ulceration, consistent with scarring from previous
ulcer disease. An electrocardiogram showed isolated
premature ventricular contraction (PVC) but was otherwise
normal. Irritable bowel syndrome was diagnosed.
An April 1992 rating decision granted service connection for
duodenal bulb deformity from previous ulcer disease and
irritable bowel syndrome, rated 10 percent. Claims for
service connection for chronic osteoarthritis, peripheral
neuropathy, PTB, chronic bronchitis with emphysema and
atheromatous aorta were denied. The veteran was notified of
this decision by letter in May 1992.
A summary of private medical treatment beginning in December
1993 shows diagnoses of bleeding peptic ulcer, irritable
bowel syndrome and peripheral neuropathy. The veteran had
noticed occasional bloody stool with loose bowel movements
(LBM).
A summary of private medical treatment beginning in January
1994 shows diagnoses of peptic ulcer disease, beriberi heart
disease, chronic osteoarthritis, peripheral neuropathy and
chronic conjunctivitis. The veteran had reported chronic
epigastric pain with nausea, vomiting and LBM.
VA examination in February 1994 recorded the veteran's
history of daily episodes of epigastric pain lasting 2 hours
in duration. He had periodic vomiting and nausea, but denied
hematemesis or melena. He was not taking medications. His
diarrhea and constipation were normal. Examination noted him
to be poorly nourished and positive for epigastric
tenderness. An upper GI series X-ray was essentially
negative although his stomach tended to be hyposthenic with
the intestinal loops in the low abdominal cavity. Diagnosis
was of a small (sm) stomach with no definitive
peptic/duodenal ulcer found. A neurologic examination found
no deficits. Electromyography and nerve conduction velocity
(EMG/NCV) studies were normal.
A June 1994 rating decision denied a rating in excess of 10
percent for duodenal bulb deformity from previous ulcer
disease and irritable bowel syndrome. A claim of service
connection for peripheral neuropathy was denied. The veteran
was notified of this decision by letter in June 1994.
A July 1999 RO field examination to confirm the veteran's
identity noted his report of shortness of breath, arthritis,
easy tiring due to a heart condition and asthma. This report
was deemed to raise an informal claim for an increased
rating.
In March 2000, the veteran was hospitalized due to chronic
obstructive pulmonary disease with secondary bacterial
infection.
A rating decision in January 2002 denied a rating in excess
of 10 percent for duodenal bulb deformity from previous ulcer
disease and irritable bowel syndrome. Notably, the veteran
had been unable to attend VA examination and no private
medical records were submitted.
As noted above, the veteran died in September 2003, at the
age of 86, as a result of respiratory failure due to
bronchopneumonia.
III. Legal criteria
To establish service connection for the cause of the
veteran's death, the evidence must show that disability
incurred in or aggravated by service either caused or
contributed substantially or materially to the cause of
death. For a service-connected disability to be the cause of
death, it must singly or with some other condition be the
immediate or underlying cause or be etiologically related
thereto. For a service-connected disability to constitute a
contributory cause, it is not sufficient to show that it
casually shared in producing death but rather it must be
shown that there was a causal connection. 38 U.S.C.A.
§ 1310; 38 C.F.R. § 3.312.
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. § 1110;
38 C.F.R. § 3.303. Service connection may also be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R. § 3.303.
Service connection is warranted on a presumptive basis for
certain chronic diseases that become manifested to
compensable degree within a specified postservice periods of
time. See 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307,
3.309. Bronchopneumonia is not listed as a chronic disease
for purposes of presumptive service connection, but PTB may
be established on a presumptive basis if such disease was
manifested to a compensable degree within 3 years following
service. Bronchopneumonia (nor any other pulmonary
disability) is not listed not among the presumptive diseases
for ex-POWs.
The United States Court of Appeals for Veterans Claims has
also held that "where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence is required." See Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102.
IV. Analysis
The veteran's death certificate shows that the immediate
cause of his death was respiratory failure due to
bronchopneumonia. No other conditions contributing to his
death have been identified. His service medical records
indicate normal clinical evaluations of the lungs
contemporaneous in time to his discharge from service, and a
certification from the Office of the Adjutant General stated
that the veteran's physical condition was noted as "WELL"
during his captivity at O'Donnell Concentration Camp, Capas,
Tarlac. There is no evidence of pulmonary abnormality until
1984 when a chest X-ray examination demonstrated pulmonary
infiltration of the LUL. Subsequent diagnoses included PTB,
COPD and chronic bronchitis with pulmonary emphysema. There
is no competent medical evidence that bronchopneumonia (or
any pulmonary disability) was related to event(s) in service.
Notably, service connection was denied for these diseases
during the veteran's lifetime. A lengthy interval between
service and the initial documented manifestation of a disease
postservice (here, approximately 38 years) is, of itself, a
factor against a determination that the disease is service
connected. See Maxson v. Gober, 230 F 3d 1330, 1333 (Fed.
Cir. 2000). Accordingly, service connection for
bronchopneumonia (or any other pulmonary disability) on the
basis that such disability became manifest in service and
persisted, on a presumptive basis (for PTB as a chronic
disease under 38 U.S.C.A. § 1112), or on the basis that
bronchopneumonia (or other primary death-causing respiratory
disease) is somehow otherwise related to service is not
warranted.
There is also no evidence that the veteran's service
connected duodenal bulb deformity from previous ulcer disease
and irritable bowel syndrome contributed to cause, or
hastened, his death. 38 C.F.R. § 3.312 (c)(4) provides that
there are primary causes of death which by their very nature
are so overwhelming that eventual death can be anticipated
irrespective of coexisting conditions, but, even in such
cases, there is for consideration whether there may be a
reasonable basis for holding that a service-connected
condition was of such severity as to have a material
influence in accelerating death. In this situation, however,
it would not generally be reasonable to hold that a service-
connected condition accelerated death unless such condition
affected a vital organ and was of itself of a progressive or
debilitating nature. Here, the veteran's bronchopneumonia
clearly was such an overwhelming primary cause. The service
connected duodenal bulb deformity from previous ulcer disease
and irritable bowel syndrome was rated as 10 percent
disabling with the last VA examination report of record,
dated February 1994, showing no definitive evidence of active
peptic/duodenal ulcer. Consequently, the service connected
disability is not shown to have been progressive or
debilitating, and there is no basis for a finding that it
accelerated, or otherwise contributed to cause the veteran's
death.
As a layperson, the appellant is not competent to establish
by her own opinion that service connected disability caused
or contributed to cause the veteran's death. See Espiritu,
supra. The preponderance of the evidence is against this
claim; consequently, the reasonable doubt provisions cited
above do not apply.
ORDER
Service connection for the cause of the veteran's death is
denied.
____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs